The Constitution and the Rule of Law

Submitted by admin on Wed, 05/18/2016 - 11:21

What is the “Rule of Law?”

Our current Constitution states that public officers owe a duty to everyone in Zimbabwe to observe and uphold the rule of law [section 18(1a)], and the “Kariba Draft” Constitution contains a similar provision. However, most people — including lawyers — have only the vaguest idea of what the expression “rule of law” means. This is understandable because it is an elastic concept. Fundamentally it means that people’s rights and obligations must be determined by laws rather than by individuals or groups of individuals exercising an arbitrary discretion. From this fundamental concept several principles are derived:

· Principle of Legality: People must not be deprived of their rights or freedoms through the exercise of wide discretionary powers by the Executive. Rights and freedoms should be curtailed only by the ordinary courts applying the law.

· Principle of Equality: No one is above the law and everyone is subject to the jurisdiction of the ordinary courts. State officials, and even the State itself, are subject to the law. Everyone is equal before the law and is equally entitled to be protected by the law. And following on from this principle:

· laws should be enforced impartially;

· as a rule, laws should apply generally and not just to particular individuals or classes of people.

· Separation of Powers: There must be a separation of powers between the Legislative, Executive and Judicial branches of government. If the Executive makes the law and enforces it, we have the rule of man, not the rule of law; and the same applies if the Legislature enforces its own laws or if the courts make the law rather than determine rights and duties under the law. In practice, the different branches cannot be completely separate because there has to be some cooperation between the different branches, so the concept of separation of powers may be defined more precisely as a governmental system of separated institutions sharing power.

· Independence of the Judiciary: The judiciary must be independent of the Executive and the Legislature. If judges and magistrates are dependent on the Executive or the Legislature, or are members of a ruling political party, they are unlikely to give objective judgments on the law.

· Laws must be Certain [i.e. clear and definite]: It must be possible for people to establish relatively easily the content of the law and the extent of their rights and duties under it. And arising out of this:

· Laws must be Accessible: If people are expected to obey laws they must be able to obtain copies of them. The Government must ensure that all laws are published and that they are always available for people who want to read them. Laws should be drafted in language that ordinary people can understand. In the Zimbabwean context, that means that laws should be translated into all the vernacular languages.

· Laws must not be Retroactive: Laws should apply only to the future and should not attempt to change rights and duties retrospectively. It is futile for anyone to find out what his or her rights and duties are under the law if a future law can convert what was lawful at the time it was done into something unlawful.

· Laws must be Objective: so far as possible laws must leave no discretion to the persons who are to apply them.

Fundamental to the concept of the rule of law is the idea that all the three branches of government must operate within their own particular spheres: the Executive is restricted to administration, the Legislature to enacting laws, and the Judiciary to adjudicating legal disputes and interpreting the laws. All three branches are subject to the law.